Citation Nr: 9931026
Decision Date: 10/29/99 Archive Date: 11/04/99
DOCKET NO. 97-29 083A ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in
Indianapolis, Indiana
THE ISSUES
1. Entitlement to an evaluation in excess of 60 percent for
valvular heart disease with cardiac neurosis.
2. Entitlement to a total rating based on individual
unemployability due to service-connected disability.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
L. Spear Ethridge, Associate Counsel
INTRODUCTION
The veteran had active duty from September 1956 to May 1960.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from rating actions by the Indianapolis,
Indiana Regional Office (RO) of the Department of Veterans
Affairs (VA).
This case was previously before the Board in September 1998,
at which time it was remanded to the RO for further
development. Such development having been completed, the
case is again before the Board for appellate review.
As was noted by the Board in its September 1998 introduction
to the Remand, the veteran indicated that he wanted to
testify at a hearing at the RO before a member of the Board.
However, the information of record reflects that the veteran
was contacted by his representative in November 1997, and
specifically clarified that he was requesting a personal
hearing before a hearing officer at the local VA Regional
Office. The RO scheduled the veteran for a hearing at the RO
before a hearing officer, but the veteran failed to report
for that hearing. Accordingly, the Board has deemed the
veteran's request for a hearing as withdrawn. See 38 C.F.R.
§ 20.702(d) (1999).
FINDINGS OF FACT
1. The veteran's service connected valvular heart disease
with cardiac neurosis has been rated as 60 percent disabling
for over 20 years; and the veteran has had two
cerebrovascular accidents in 1996 attributable, according to
medical opinion, to nonservice-connected long-standing
conditions of hypertension and diabetes mellitus.
2. Symptoms of the veteran's service-connected valvular
heart disease with cardiac neurosis were shown on 1996
echocardiogram to be mild left ventricular hypertrophy with
left atrial dilation and left atrial size of 3.8 centimeters;
mild insufficiency and pulmonic insufficiency; and normal
left ventricular systolic function with no segmental wall
motion abnormalities, no effusions, and no evidence of mitral
nor aortic stenosis; and cardiology examination in 1997
reveals that the veteran had slurred speech and unstable gait
as a debilitating result of cerebrovascular accidents.
3. Of record is a 1998 medical opinion that any cardiac
causes of cerebrovascular accidents such as intracardiac
thrombus or mitral/aortic stenosis are not present; and that
there is overall normal left ventricular systolic function
and no evidence of advanced coronary atherosclerotic disease;
that there is no degree of significant valvular disease which
could be related to two cerebrovascular accidents in 1996;
and that current symptoms of inability to walk are primarily
due to the cerebrovascular accident and not to any evidence
of cardiac dysfunction either due to ischemia nor valvular
heart disease.
4. The veteran is a high school graduate with 3 years of
college education; and he last worked in April 1995 as an
insurance sales agent.
5. Service connection is in effect for valvular heart
disease with cardiac neurosis, 60 percent disabling; pes
planus, zero percent disabling; and acne vulgaris of the
face, zero percent disabling.
6. The veteran's service connected heart disability, and
service connected pes planus and acne vulgaris, are not the
sole cause of his unemployability; and medical opinion
reveals that there are no symptoms related to valvular heart
disease which would limit the veteran from working.
CONCLUSIONS OF LAW
1. The criteria for a rating in excess of 60 percent for
valvular heart disease with cardiac neurosis have not been
met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R.
§ 4.104, Diagnostic Code 7000 (1997) & (1999).
2. The veteran is not individually unemployable by reason of
his service-connected disabilities. 38 U.S.C.A. §§ 1155,
5107; 38 C.F.R. §§ 3.102, 3.340, 4.16 (1999).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Initially, the Board notes that the provisions of 38 U.S.C.A.
§ 5107(a) have been met, in that the veteran's claims for an
increased evaluation for his service-connected heart
disability and for a total rating based on individual
unemployability (or TDIU) are new, well grounded and
adequately developed. This finding is partly based on the
veteran's evidentiary assertion that his service-connected
disability has increased in severity. See Drosky v. Brown,
10 Vet. App. 251, 254 (1997) (citing Proscelle v. Derwinski,
2 Vet. App. 629, 631-32 (1992)). Additionally, a claim of
individual unemployability is in the nature of a claim for an
increased disability evaluation, and, essentially, the
veteran's evidentiary assertion that his service-connected
disabilities render him unemployable pursuant to VA
regulation, makes the TDIU claim well grounded. See Suttmann
v. Brown, 5 Vet. App. 127, 136-37 (1993). No further
assistance to the veteran is required to comply with the duty
to assist mandated by 38 U.S.C.A. § 5107(a). See Waddell v.
Brown, 5 Vet. App. 454, 456 (1993); Murphy v. Derwinski,
1 Vet. App. 78, 81 (1990).
Factual Background
In a March 1961 rating decision, service connection was
granted for valvular heart disease with sinus bradycardia.
Sinus bradycardia was diagnosed on VA electrocardiogram (EKG)
in February 1961, within one year of the veteran's separation
from service. A noncompensable, or zero rating was assigned.
In March 1969, the veteran was hospitalized at VA. He had
complaints of chest pain at rest and on exertion. He
underwent right and left heart catheterization. The
diagnosis was valvular heart disease, aortic obstruction. In
an April 1969 rating decision, the veteran's heart disability
rating was increased from zero to 30 percent. During the
remainder of 1969, the veteran was treated continuously on an
outpatient basis at VA in the cardiology department. He had
continued chest pain and some numbness of both arms. In a
September 1969 rating decision, the evaluation was increased
to 60 percent disabling based upon increased cardiac
symptomatology.
During the 1970, the veteran was treated continuously at VA
for his cardiac condition. A January 1970 VA chest x-ray
report noted left ventricle dilation and prominence of the
ascending aorta; both findings compatible with aortic
valvular disease. February 1970 records show that the
veteran complained of chest pain. In March 1970, one
diagnosis included chest pain, etiology unknown. A June
1970 VA EKG was within normal limits. Mild hypertension was
the diagnosis in June 1970, and possible idiopathic
hypertrophic subaortic stenosis (IHSS). In August 1970, the
impression was essential hypertension, and questionable IHSS.
In September 1970, four diagnoses were given including IHSS
(idiopathic hypertrophic subaortic stenosis),
hyperventilation, essential hypertension and severe cardiac
neurosis.
In August 1970, based upon the complaints and symptoms shown
in his VA treatment records, the veteran requested an
increased evaluation for his service-connected heart
condition. In October 1970, the RO issued a confirmed rating
decision, and denied and increased evaluation for the
service-connected heart disability. Additionally, the RO
determined that unemployability, due to the veteran's service
connected condition, was not shown. Notice of these denials
was sent to the veteran in October 1970.
In an April 1971 rating decision, the veteran's disability
was re-characterized as valvular heart disease with cardiac
neurosis. The rating remained at 60 percent disabling.
In April 1972, the veteran underwent a special VA heart
examination. The diagnosis was aortic stenosis, sub-
valvular, of unknown cause, by records and clinical symptoms.
A corresponding EKG was within normal limits. A
corresponding chest x-ray was negative except for cardiac
silhouette which appeared to be at or slightly exceeding the
upper limits of normal. In April 1972, the RO issued a
confirmed rating decision, and denied the veteran's request
for increase because there was no material change in his
condition.
In October 1974, the veteran's private physician wrote a
letter and noted that he had treated the veteran for the past
five years for chest pain related to subaortic stenosis. He
had been treated with Inderal, 20 milligrams, before meals
and at bedtime, which permitted him to do menial tasks. The
physician stated that the veteran was "unable to do any
active work, without experiencing chest pain, which was
disabling." It was noted that the veteran was also under
treatment for hypertension. The physician stated that
physical findings were limited to mild obesity and a grade
1/6 systolic murmur. His blood pressure was 140/80 while on
medication. Laboratory tests were done, a chest x-ray was
normal and the electrocardiogram was essentially negative.
In November 1974, the veteran underwent a VA examination for
the heart. The veteran was referred for hospital work-up.
The diagnosis was deferred.
December 1974 VA outpatient treatment records reveal that the
veteran was seen for complaints of chest pain. Later in
December 1974, the veteran was hospitalized at VA where he
underwent a cardiac catheterization. The diagnoses were
hypertrophic cardiomyopathy, chest pain secondary to
hypertrophic cardiomyopathy, and hypertension; along with
other diagnoses.
In a March 1975 Confirmed Rating Decision, the RO continued
the veteran's rating. In July 1975, the Board reviewed the
veteran's claim and denied his claim for an increased
evaluation.
A December 1975 VA examination revealed that the veteran was
very much over weight, according to the examiner, at 238
pounds. His blood pressure was 144/88, and the heart rate
was 96. Respiration was 20. Examination of the heart
revealed that the sinus rhythm was regular. The point of
maximal impulse (PMI) was located at the fifth left
intercostal space along the mammary line. He had a grade
three over six systolic murmur best heard at the PMI and to
the left side of the precordium. The carotids were not
enlarged and no bruits were heard. There were no gallops,
and no premature beats. The distal peripheral pulses were
intact in both feet. There were no varicosities and no pedal
edema. The diagnosis was valvular disease, functional
classification II, and cardiac neurosis. Poor wave
progression was noted in a November 1975 electrocardiogram.
In March 1976, the veteran wrote a letter and indicated that
he was having trouble finding employment due to his service-
connected heart disability. In March 1976, he underwent a VA
examination. The veteran reported having problems with
employment and other non medical issues. No pertinent
diagnosis was given. In the comment section, the examiner
said that "it would seem that the necessity of taking
Digitalis makes his heart condition more than a cardiac
neurosis as previously diagnosed." In April 1976, the RO
notified the veteran that examination failed to show that his
condition had increased in severity, and that there was no
indication that his service-connected condition was
sufficiently severe as to permanently preclude him from
engaging in substantially gainful employment.
February 1995 VA records show that the veteran underwent
acute abdominal series, including a chest x-ray. The results
included no active pulmonary disease, and mild cardiomegaly.
In April 1995, the veteran was hospitalized at VA for other
purposes, but during that time, two chest x-rays were taken.
One showed no active disease and nasogastric tube in place,
and another showed "A/I" in the left lower lobe A/I.
April 1995 records show that the veteran was hospitalized at
VA. He underwent procedures unrelated to his heart
condition. One of the discharge diagnoses was hypertension.
In May 1995, the veteran wrote a letter which indicated that
he had to resign from his last job. He cited having problems
with numbness in both feet, muscle spasms, gallstones, and
pancreas.
In June 1995, the veteran was hospitalized at VA for other
reasons.
In September 1995, the veteran underwent a VA examination.
He complained of having occasional chest pain, that was of
short duration was not acute. Otherwise, he had no other
complaints related to his heart. Physical examination that
the veteran was well developed and nourished, alert, and in
no distress. He had good general condition and appearance.
Pulse was 76 and regular, respiration was 18 and regular, and
temperature was 98 degrees. The examiner noted that the
chest was symmetrical in countor, and equal in expansion.
The heart was not enlarged, and there was systolic blowing
murmur at the mitral area, and there was no sign of
congestive heart failure. The blood pressure was 170/100
sitting and 175/100 standing. It was 170/98 in the reclined
position. The abdomen was markedly obese, there was no mass,
and it was nontender. There were normal bowel sounds.
Although it was noted that the veteran was to be evaluated by
Cardiology service, it was later noted that cardiology was
not scheduled. The diagnoses included rheumatic heart
disease, with mitral stenosis, symptomatic; hypertension, and
obesity, among other diagnoses. A corresponding September
1995 chest x-ray revealed an impression of cardiac silhouette
mildly enlarged with normal vascularity and no focal
infiltrate.
In February 1996, the veteran was hospitalized at VA. He
presented with complaints of sudden onset of unsteady gait,
falling over on the right side, and left sided weakness of
the arm and the leg. During his hospital course, the veteran
underwent head computerized tomographic scan on admission
revealing a lacunar infarction of the right internal capsule.
The specific medical records of the veteran's hospital course
are of record. Upon discharge, it was noted that he had had
a stroke, subcortical infarction of the right hemisphere.
Also a part of the discharge diagnosis was hypertension,
diabetes mellitus, ischemic heart disease and hematuria.
A February 1996 EKG reportedly revealed mild left ventricular
dilatation, normal left ventricular systolic function, normal
wall motion in areas seen, and no pericardial effusion.
Proximal septum impinges were noted on the outflow tract and
there was mild regurgitation. There was mild pulmonic valve
regurgitation and no obvious source of thrombus. At a
follow-up examination at VA in February 1996, the diagnosis
included status post stroke, and that the veteran was
improving, and that there was minimal residual involvement.
In April 1996, the veteran underwent a VA examination for
diseases of the heart. The veteran's history was reported.
It was also reported that the veteran denied any history of
congestive heart failure or myocardial infarctions in the
past. The examiner noted that he had not had any stress test
recently. His weight had been stable since his stroke,
although it was down ten to fifteen pounds from his usual
baseline. The veteran currently took the medications.
Physical examination revealed that the blood pressure in the
right arm was 182/94 and his pulse was 60 and regular. Blood
pressure was the same in the left arm and there were no
orthostatic changes. Sclera were somewhat injected but were
otherwise unremarkable. The face was symmetric. No carotid
bruits were present. The neck was somewhat thick and jugular
venous pulsation could not be appreciated. Lungs were clear
to auscultation.
The examiner stated that cardiac examination revealed a quiet
precordium. There was a 3/6 systolic murmur that was present
throughout the precordial regions; although loudest along the
sternal border. There was a faint diastolic murmur heard
directly over the sternum. There was a loud fourth heart
sound. There was no third heart sound noted. The systolic
murmur was injection type murmur, although at the apex it
took on more of a holosystolic murmur characteristic.
Pulses were 2+ in the extremities and there was no edema
present. There was mildly decreased sensation in both lower
extremities and a mild left sided paresis affecting
predominantly the left upper arm.
The examiner noted that an EKG during the veteran's his
previous hospitalization had demonstrated sinus bradycardia
with left ventricular hypertrophy (LVH) changes. Previous
chest x-rays had demonstrated mild cardiomegaly. His
echocardiogram obtained in February showed him to have a
mildly dilated left ventricle with a left ventricular
internal diameter of 5.73, normal left ventricular systolic
function, and the left ventricular outflow track had a mild
obstructive gradient due to impingement from the septum. The
examiner stated that there was no comment made on the report
about septal hypertrophy. There was mild aortic
insufficiency present. There was a normal left atrial size.
The examination impressions were hypertension;
cerebrovascular accident secondary to hypertension; left
ventricular outflow track obstruction secondary to septal
impingement; and non-insulin dependent diabetes.
In a May 1996 rating decision, the evaluation was continued
at 60 percent disabling, and the disability was classified as
valvular heart disease with cardiac neurosis.
In September 1996, the veteran was hospitalized at VA. He
presented to the emergency room after experiencing sudden
dysarthria. The family had noted that the veteran had
difficulty in speaking while talking on the telephone. They
also felt that he had some staggering and left lower
extremity weakness. He did not have any dizziness, visual
changes, nausea or vomiting, bowel or bladder changes. He
did have a very mild occipital headache. The veteran's
hospital course treatment is of record. Noted therein was
that he currently worked as an insurance salesman. The
discharge diagnoses were transient ischemic attack; diabetes;
and hypertension.
In November 1996, the veteran initiated an increased rating
citing his February 1996 and September 1996 hospitalizations
as increased severity of his condition. The veteran
indicated that his strokes had affected his driving, talking
and hand writing ability. The veteran asserted that he was
unable to work at that point in time.
In January 1997, the veteran underwent a general VA
examination. The cardiovascular portion of the examination
revealed that his blood pressure was 140/90 on the left side
and 140/90 on the right side and did not change with change
of posture. His heart rate was 88 per minute and heart
sounds were normal. The abdomen was soft, nontender and his
liver, spleen and kidneys were not palpable. It was noted
that the veteran was alert and oriented times three and that
he had somewhat slurred speech. In the assessment section,
the examiner noted that the veteran had two CVA's in a span
of eight months. It was noted that the neurology department
was following the case. The examiner stated that
cerebrovascular accident's were quite debilitating for the
veteran as he could not walk without the help of a stick and
he had an unstable gait. It was noted therein that the
veteran also felt some weakness and tended to fall. The
examiner noted that the veteran's hypertension was presently
under control and that it needed very good control. The
examiner stated that the veteran needed to follow with a
neurologist to prevent any further strokes. The examiner
stated "[h]owever, he has not recovered completely and has
got significant residual damage from his previous two
strokes." The assessment included hypertension, which was
stable at that time. The assessment included rheumatic heart
disease, and the examiner noted that the veteran was followed
up by his general medicine for his heart condition. However,
he did not have any acute chest pain or any evidence of any
angina pectoris recently.
In an April 1997 rating decision, the 60 percent evaluation
for valvular heart disease with cardiac neurosis was
continued. The RO noted that a higher evaluation of
100 percent was not warranted in the absence of recently
active disease, or unless more than sedentary employment was
precluded by residual enlargement of the heart, dyspnea on
slight exertion, and signs of beginning congestive failure.
In the April 1997 rating decision, the RO also denied the
veteran entitlement to individual unemployability because the
veteran had not been found unable to secure or follow a
substantially gainful occupation as a result of service-
connected disabilities. Rather, the RO considered the
veteran to be unemployable due to nonservice-connected
factors. The RO concluded that the service-connected
disabilities, when considered apart from the nonservice-
connected conditions, were not the cause of unemployability.
The RO notified the veteran of the same in April 1997. In
August 1997, the veteran was provided with a Statement of the
Case.
In March 1998, the RO initiated a VA medical opinion. In the
request, the RO gave special instructions and indicated that
a cardiologist was needed to review the veteran's files and
to determine those symptoms related to the service-connected
valvular heart disease as opposed to those symptoms related
to the veteran's hypertension and cerebrovascular accident.
The RO also asked whether the veteran's cerebrovascular
accident was a result of his service-connected valvular heart
disease.
On April 7, 1998, a heart and hypertension VA examination
opinion was obtained. The examiner noted that the veteran
was 58 years old with a history of multiple medical problems
including hypertension for the last 31 years and diabetes for
the last 10 years. At the current time, by review of
records, it appeared that he had been assigned a 60 percent
disabling decision for valvular heart disease with cardiac
neurosis and the examiner was asked to evaluate and determine
those symptoms related to the service-connected valvular
heart disease as opposed to those symptoms related to the
veteran's hypertension and cerebrovascular accident.
Further, was the veteran's cerebrovascular accident a result
of his service-connected valvular heart disease or related to
other factors? The examiner stated the following:
My review of the records reveals that the veteran has
had cerebrovascular accidents twice; once in January
1996 followed by a transient ischemic attack in
September of that same year. Evaluation by his
physicians revealed that he did not have significant
cerebrovascular atherosclerotic disease. The carotid
duplex Doppler's which were performed in September 1996,
revealed evidence of only 50 % and 15 % stenoses in the
common carotid arteries.
An echocardiogram performed on September 20, 1996
revealed mild left ventricular hypertrophy, left atrial
dilation with left atrial size of 3.8 centimeters with
mild mitral insufficiency, pulmonic insufficiency.
There is normal left ventricular systolic function with
no segmental wall motion abnormalities present. No
effusions are noted and there is no evidence of mitral
nor aortic stenosis.
Computed tomography and magnetic resonance imaging
performed on the patient during hospitalizations for his
transient ischemic attacks, revealed that he has
suffered small lacunar strokes in the basal ganglia but
there is no evidence of hemorrhagica stroke nor mass nor
midline shift.
In evaluating this patient's chart, it appears that any
cardiac causes of cerebrovascular accidents such as
intracardiac thrombus or mitral/aortic stenosis are not
present. Further, there is overall normal left
ventricular systolic function and no evidence of
advanced coronary atherosclerotic disease. I cannot at
this time ascertain the patient's functional status as
his gait is severely limited by balance and weakness
problems after his 2 cerebrovascular events. I cannot
evaluate his ability to walk or ambulate before
developing shortness of breath or chest pain. However,
the location of his ischemic cerebrovascular insults is
very typical for a hypertension related cerebrovascular
accident, certainly accelerated by the presence of
diabetes mellitus type II and its attendant
microvascular disease.
There is no evidence of an unstable or friable plaque in
either common carotid during the ultrasound study
performed as an inpatient, nor is there any evidence of
intracardiac source of thrombus.
If (the examiner possibly meant "I" instead of "If")
find no evidence that the patient has any degree of
significant valvular disease which could be related to
his cerebrovascular accidents. Further, his symptoms of
inability to walk are primarily due to the
cerebrovascular accident and not to any evidence of
cardiac dysfunction either due to ischemia nor valvular
heart disease.
In summary, I find no symptoms related to valvular heart
disease which would limit him from working. Further, I
find no evidence that his cerebrovascular accidents were
in any way related to any valvular heart abnormalities.
I suspect that his cerebrovascular accidents are almost
certainly due to long-standing hypertension and diabetes
mellitus. By my review of the records, I see that these
two diseases have not been service-connected at this
time.
In April 1998, the RO issued a Supplemental Statement of the
Case, and discussed the medical opinion which was obtained.
Also included were the new cardiovascular regulations, which
went into effect in January 1998. In September 1998, the
Board remanded that case for further development in
accordance with the regulatory changes in 38 C.F.R. § 4.104,
Diagnostic Code 7000.
In February 1999, the veteran's representative submitted a
statement for the record. The case was transferred back to
the Board in February 1999.
Increased Rating
Disability ratings are assigned in accordance with the VA's
Schedule for Rating Disabilities and are intended to
represent the average impairment of earning capacity
resulting from disability. 38 U.S.C.A. § 1155. Separate
diagnostic codes identify the various disabilities. The
determination of whether an increased evaluation is warranted
is based on review of the entire evidence of record and the
application of all pertinent regulations. See Schafrath v.
Derwinski, 1 Vet. App. 589 (1991). Generally, the degrees of
disability specified are considered adequate to compensate
for considerable loss of working time from exacerbation or
illnesses proportionate to the severity of the several grades
of disability. 38 C.F.R. § 4.1. The words "moderate" and
"severe" are not defined in the VA Schedule for Rating
Disabilities. Rather than applying a mechanical formula, the
Board must evaluate all of the evidence to the end that its
decisions are "equitable and just." 38 C.F.R. § 4.6
(1999). Once the evidence is assembled, the Secretary is
responsible for determining whether the preponderance of the
evidence is against the claim. See Gilbert v. Derwinski,
1 Vet. App. 49, 55 (1990). If so, the claim is denied; if
the evidence is in support of the claim or is in equal
balance, the claim is allowed. Id.
The primary focus in rating disabilities is on functional
impairment. 38 C.F.R. § 4.10 (1999). Where there is a
question as to which of two evaluations shall be applied, the
higher evaluation will be assigned if the disability picture
more nearly approximates the criteria required for that
rating. Otherwise, the lower rating will be assigned.
38 C.F.R. § 4.7 (1999).
When an unlisted condition is encountered it will be
permissible to rate under a closely related disease or injury
in which not only the functions affected, but the anatomical
localization and symptomatology are closely analogous.
Conjectural analogies will be avoided, as will the use of
analogous ratings for conditions of doubtful diagnosis, or
for those not fully supported by clinical and laboratory
findings. Nor will ratings assigned to organic diseases and
injuries be assigned by analogy to conditions of functional
origin. 38 C.F.R. § 4.20 (1999).
The United States Court of Appeals for Veterans Claims (known
as the United States Court of Veterans Appeals prior to March
1, 1999) (hereinafter, "the Court"), has held that, at the
time of an initial rating, separate, or staged, ratings can
be assigned for separate periods of time based on the facts
found. See Fenderson v. West, 12 Vet. App. 119 (1999).
The Board has reviewed all of the evidence pertinent to the
veteran's claim for increased evaluation for his service-
connected heart disability.
Initially, the Board notes that the diagnostic rating
criteria for cardiovascular diseases were changed during the
course of this appeal. Effective January 12, 1998, VA
revised the criteria for diagnosing and evaluating
cardiovascular disabilities. See 62 Fed. Reg. 65,207 (1997).
The new criteria for evaluating service-connected
disabilities of the cardiovascular system are codified at 38
C.F.R. § 4.104. In its September 1998 remand, the Board
acknowledged the change in regulatory criteria and the RO
subsequently provided the veteran with the regulatory
criteria in effect both prior to, and from, January 12, 1998.
In Karnas v. Brown, 1 Vet. App. 308 (1991), the Court held
that "where the law or regulation changes after a claim has
been filed or reopened, but before the administrative or
judicial appeal process has been concluded, the version most
favorable to the appellant . . . will apply unless Congress
provided otherwise or permitted the Secretary of Veterans
Affairs (Secretary) to do otherwise and the Secretary did
so." Id. at 313; see also DeSousa v. Gober, 10 Vet. App.
461, 465 (1997). The Board will evaluate the veteran's
service-connected cardiovascular disability under both the
new and old rating criteria. Id.
Next, it is noted that the revision in rating criteria
incorporates objective measurements of the level of physical
activity, expressed numerically in metabolic equivalents
(METs) at which cardiac symptoms develop. METs are measured
by means of a treadmill test. However, it is recognized that
a treadmill test may not be feasible in some instances owing
to a medical contraindication, such as unstable angina with
pain at rest, advanced atrioventricular block, or
uncontrolled hypertension. If a treadmill test is thought to
be inadvisable due to factors including the foregoing, "the
examiner's estimation of the level of activity, expressed in
METs and supported by examples of specific activities, such
as slow stair climbing or shoveling snow that results in
dyspnea, fatigue, angina, dizziness, or syncope, is
acceptable. See 62 Fed. Reg. at 65,211; see also 38 C.F.R.
§ 4.104, Note 2 (1999).
In accordance with the new criteria for Diagnostic Code 7000,
60 percent rating is warranted where there has been more than
one episode of congestive heart failure in the past year;
where a workload of greater than 3 METs but not greater than
5 METs results in dyspnea, fatigue, angina, dizziness or
syncope; or where there is left ventricular dysfunction with
an ejection fraction of 30 to 50 percent. A 100 percent
rating is warranted for chronic congestive heart failure;
where a workload of 3 METs or less results in dyspnea,
fatigue, angina, dizziness, or syncope; or where there is
left ventricular dysfunction with an ejection fraction of
less than 30 percent. 38 C.F.R. § 4.104, Diagnostic Code
7000 (1999).
Under the new criteria, a 60 percent rating may be assigned
when the heart is definitely enlarged, with severe dyspnea on
exertion, elevation of the systolic blood pressure, or such
arrhythmias as paroxysmal auricular fibrillation or flutter
or paroxysmal tachycardia, with more than light manual labor
precluded. A 100 percent evaluation for inactive rheumatic
heart disease requires clinical and roentgenogram
confirmation of definite enlargement of the heart, dyspnea on
slight exertion, rales, pretibial pitting at the end of the
day, or other definite signs of beginning congestive failure;
and preclusion of more than sedentary labor. 38 C.F.R.
§ 4.104, Diagnostic Code 7000 (1997).
After a thorough review of the clinical results noted in the
factual background above, the Board finds that a 100 percent
schedular rating for service-connected valvular heart disease
with cardiac neurosis is unwarranted under either the old or
new rating criteria. Currently, a 60 percent rating is in
effect for the veteran's service-connected heart disability,
characterized as valvular heart disease with cardiac
neurosis. This rating has been in effect since September
1969, over thirty years, and is protected as has been noted
in the record by the RO. During the last thirty years, the
veteran has experienced several other health problems in
addition to the problems resulting from his service-connected
heart condition. Most notable is that the veteran has a long
history of hypertension and diabetes mellitus, and that in
1996 he had two cerebrovascular accidents, or strokes, and
has had to deal with the debilitating symptoms that flowed
therefrom. The veteran's health history, as set forth in the
factual background, is important to the analysis of this case
because, while his service-connected disability is a
cardiovascular disability, it has to do with valvular heart
disease, and does not encompass hypertension, or other
related ailments. That is, the veteran is not service-
connected for hypertension, diabetes mellitus, or other
ailments that were described as very problematic in his post-
service medical records.
Since the 1960's, the veteran has had continuos care at VA,
with some hospitalizations, for the service-connected
condition and the other ailments. Many specialized tests
have been performed, including EKG's and chest x-rays, and
the veteran has had many VA examinations for the heart.
While there is little or no documentation of the veteran's
disability during the 1980's, the record shows that during
the 1990's, in particular, in April 1995, chest x-rays
revealed no active disease; that the veteran continued to
carry a diagnosis of hypertension in April 1995. He was also
hospitalized in 1995 for other reasons. When examined by VA
in September 1995, the veteran complained of having
occasional chest pain, and examination of the veteran
revealed that his heart was not enlarged, and that there was
no sign of congestive heart failure; both critical elements
for rating the veteran under the old diagnostic criteria for
100 percent. A silhouette mildly enlarged with normal
vascularity and no focal infiltrate was shown on chest x-ray
in September 1995.
Then, unfortunately, in April 1996, the veteran underwent the
first of two cerebrovascular accidents; for which he was
hospitalized. The diagnoses upon discharge were for
hypertension, diabetes mellitus, and ischemic heart disease
and hematuria. No mention was made of valvular heart disease
with cardiac neurosis. Similar diagnoses were revealed at a
VA heart examination in April 1996. Then, in September 1996,
the veteran underwent the second of two cerebrovascular
accidents and presented to the emergency room at VA. The
diagnoses included transient ischemic attack, diabetes, and
hypertension. These two attacks appear to be the basis for
the veteran's request for increase, and his other claim for
unemployability; to be discussed later. He was afforded
another VA cardiovascular examination in January 1997,
wherein it appears as though the examiner thought that the
two cerebrovascular accidents, within an eight month span,
were quite debilitating for the veteran; as he could not walk
without the help of a stick and he had an unstable gait.
Weakness caused him to fall. Basically, at the time of the
January 1997 examination, the veteran had not recovered
completely and he had significant residual damage from his
previous two strokes.
Due to the complexity of the questions surrounding the
veteran's service-connected disability, and the change in
regulations, an opinion was solicited regarding this claim.
In essence, after thoroughly reviewing the claims folder, the
VA examiner specifically determined that the veteran did not
have any cardiac causes of the cerebrovascular accidents,
such as intracardiac thrombus or mitral/aortic stenosis which
were not present. Overall, there was normal left ventricular
systolic function and no evidence of advanced coronary
arteriosclerotic disease. It was opined that the location of
the ischemic cerebrovascular insults were very typical for a
hypertension related cerebrovascular accident, and were
certainly accelerated by the presence of diabetes mellitus.
The veteran's symptoms of not being able to walk were also
attributed to the cerebrovascular accidents.
This opinion, which is supported wholly by the evidence of
record, and the fact that the examiner diligently reviewed
the veteran's claims folder, supports the fact that the
veteran does not presently exhibit disability symptoms that
would warrant a 100 percent schedular rating at this time.
Under the old criteria, no definite enlargement of the heart
has been shown, nor has dyspnea on slight exertion, or other
signs of congestive heart failure. Under the new criteria,
for which chronic congestive heart failure must be shown in
certain ways, the veteran's symptomatology also does not
comport with a higher rating. In this case, the veteran did
not undergo a treadmill test for more objective evaluation
because of medical contraindication, as described by the VA
examiner in April 1998 when he said that he could not
evaluate the veteran's ability to walk or ambulate before
developing shortness of breath or chest pain, and could not
at that time ascertain the veteran's functional status as his
gait was severely limited by balance and weakness
attributable to the cerebrovascular accidents. See 38 C.F.R.
§ 4.104, Note 2 (1999).
Ultimately, the evidence of record at this time, does not
support an increased rating to 100 percent. The symptoms
corresponding to the veteran's service-connected valvular
heart disease with cardiac neurosis are, at most, indicative
of a 60 percent rating under both the old and new rating
criteria. His several other ailments relate to nonservice-
connected disabilities; which have been opined to be
unrelated to his service-connected disability. Accordingly,
the Board concludes that the criteria for a disability rating
higher than 60 percent for valvular heart disease with
cardiac neurosis are not met under either the old or the new
rating criteria; and the veteran's claim for increase is
denied.
TDIU
The Board has also carefully reviewed the veteran's claim for
unemployability, and determines that, based on the evidence
of record, he is not eligible for this benefit either.
Total disability will be considered to exist when there is
present any impairment of mind or body which is sufficient to
render it impossible for the average person to follow a
substantially gainful occupation. 38 C.F.R. § 3.340 (1999).
However, if the total rating is based on a disability or
combination of disabilities for which the Schedule for Rating
Disabilities provides an evaluation of less than 100 percent,
it must be determined that the service-connected disabilities
are sufficient to produce unemployability without regard to
advancing age. 38 C.F.R. § 3.341 (1999).
Total disability ratings for compensation may be assigned,
where the schedular rating is less than total, when the
disabled person is, in the judgment of the rating agency,
unable to secure or follow a substantially gainful occupation
as a result of service- connected disabilities, provided
that, if there is only one such disability, it shall be
ratable at 60 percent or more, and that, if there are two or
more disabilities, there shall be at least one disability
ratable at 40 percent or more, and sufficient additional
disability to bring the combined rating to 70 percent or
more. 38 C.F.R. § 4.16(a) (1999).
In Hatlestad v. Derwinski, 1 Vet. App 164 (1991), the Court
referred to apparent conflicts in the regulations pertaining
to individual unemployability benefits. Specifically, the
Court indicated there was a need for discussing whether the
standard delineated in the controlling regulations was an
"objective" one based on average industrial impairment or a
"subjective" one based upon the veteran's actual industrial
impairment. The Board further notes that it is bound in its
decisions by the regulations, the Secretary's instructions
and the precedent opinions of the chief legal officer of VA.
38 U.S.C.A. § 7104(c) (West 1991). In a pertinent precedent
decision, the VA General Counsel concluded that the
controlling VA regulations generally provide that veterans
who, in light of their individual circumstances, but without
regard to age, are unable to secure and follow a
substantially gainful occupation as a result of service-
connected disability shall be rated totally disabled, without
regards to whether an average person would be rendered
unemployable by the circumstances. Thus, the criteria
include a subjective standard. It was also determined that
"unemployability" is synonymous with inability to secure and
follow a substantially gainful occupation. VA O.G.C. Prec.
Op. No. 75-91 (Dec. 27, 1991), 57 Fed. Reg. 2317 (1992).
Also, 38 C.F.R. § 3.321(b)(1) provides that, in exceptional
circumstances, where the schedular evaluations are found to
be inadequate, the veteran may be awarded a rating higher
than that encompassed by the schedular criteria, as shown by
evidence showing that the disability at issue causes marked
interference with employment, or has in the past or continues
to require frequent periods of hospitalization rendering
impractical the use of the regular schedular standards.
For a veteran to prevail on a claim based on unemployability,
it is necessary that the record reflect some factor which
takes the claimant's case outside the norm of such veteran.
See 38 C.F.R. §§ 4.1, 4.15. The sole fact that a claimant is
unemployed or has difficulty obtaining employment is not
enough. A high rating in itself is a recognition that the
impairment makes it difficult to obtain and keep employment.
The question is whether the veteran is capable of performing
the physical and mental acts required by employment, not
whether the veteran can find employment. See 38 C.F.R.
4.16(a) (1996); Van Hoose v. Brown, 4 Vet. App. at 363.
In the veteran's case, service connection is in effect for
pes planus and acne vulgaris, both rated noncompensably at
zero percent, and for the valvular heart disease with cardiac
neurosis, rated 60 percent, as indicated in the above
discussion.
In addition to the evidence set out in the above sections, it
is noted that the veteran submitted two Applications for
Increased Compensation Based on Unemployability, VA Form 21-
8940. The first one was submitted in June 1995, wherein the
veteran indicated that he could not pass physical
examinations for insurance purposes due to high blood
pressure. He indicated having been hospitalized. He said
that the date that his disability affected full time
employment was April 16, 1995, and that the last time he
worked full time was on February 24, 1995. He became too
disabled to work on April 16, 1995. The veteran listed his
past employment as working in government procurement and
insurance sales. In terms of education, the veteran listed
that he completed 4 years of high school and 3 years of
college. He indicated that he had no other training or
education before service or since he became disabled. In the
remarks section, the veteran said that when he was employed
as an insurance agent, his position consisted of driving most
of the day, collecting premiums and servicing accounts. Due
to medication for his back, high blood pressure, diabetes,
and heart problem, he resigned because the medication
interfered with driving and made things hazardous.
Other employment records received in July 1995 reveal that
the veteran was employed from December 1994 to February 1995
as an Agent for a life and accident insurance company. The
second application for unemployability was submitted in
November 1996, and at that time the veteran indicated that he
had been unemployed for the past 5 years.
The veteran in this case certainly meets the basic criteria
to be considered for a granted of TDIU, as his service-
connected valvular heart disease disability is rated
60 percent disabling. Seen 38 C.F.R. §§ 3.340, 3.341,
4.16(a). However, based on the medical evidence, and
specifically the medical opinion of April 1998, the veteran
has "no symptoms related to valvular heart disease which
would limit him from working." Although the veteran's
service-connected disability may limit him in some ways in
the performance of a career as an insurance agent, as is
reflective of the high 60 percent disability rating, it does
not ultimately render him unemployable; especially for
sedentary type positions.
While it is very unfortunate that the veteran has so many
nonservice-connected ailments, some of a debilitating nature,
the fact still remains that his service connected valvular
heart disease and other noncompensable service-connected
disabilities, do not render him unemployable. The veteran is
unable to secure or follow a substantially gainful occupation
as a result of his nonservice-connected disabilities, such as
hypertension, diabetes mellitus, and the two strokes he
suffered in 1996. The same is clearly stated by opinion in
the record and supporting facts.
Accordingly, there is no competent evidence that his valvular
heart disease, in and of itself, renders him unemployable in
view of his educational (three years of college) and
occupational experience (insurance sales). Accordingly, a
grant of entitlement to TDIU benefits is not supported by the
evidence of record, and the claim must be denied. 38 C.F.R.
§§ 3.321, 3.340, 3.341, 4.15, 4.16, 4.19.
ORDER
An evaluation in excess of 60 percent for valvular heart
disease with cardiac neurosis is denied.
A total rating based on individual unemployability due to
service-connected disability is denied.
Deborah W. Singleton
Member, Board of Veterans' Appeals